PEOPLE v. BROWN (1975)

Defendant appeals his conviction by jury verdict of the offenses of using the credit card of another with intent to defraud and assault with force likely to produce great bodily harm, with a prior conviction of a felony, i. e., burglary.

On September 17, 1973, defendant, with two companions, entered a store carrying a black bag; went to the men's department; selected merchandise priced at $1,243.90; tried on some of the articles purchased but did not try on others; from the black bag produced a credit card in the name of Mr. and Mrs. Al W. Sirott; tendered the credit card, and a yellow temporary driver's license for identity, to the salesman; was told the salesman needed only the credit card; and signed two sales slips for the merchandise with the name Al W. Sirott. Defendant and his two companions went to the fourth floor where he purchased a woman's coat, jacket and mink hat; carried the black bag with him; and used the Sirott credit card to consummate the purchase.

In the meantime the head of the men's department contacted the security force employed by the store, as a result of which a security guard, Sanders, obtained information on Al Sirott and concluded defendant was not Sirott. Thereafter Sanders and three other security guards went to the fourth floor; met defendant and his two companions; asked them to come to the elevator area, where he arrested defendant; asked defendant what his occupation was and defendant replied he was a salesman for Palm Springs Lincoln Mercury. Thereupon Sanders, the three other guards, defendant and his two companions went to the store's security office, a room 12 feet by 12 feet with two desks and four chairs. One of the guards, Bacon, asked defendant for identification. Defendant gave him a yellow Minnesota driver's license in the name of Sirott. The license was written in red ink. Bacon told defendant the license was not sufficient identification whereupon defendant picked up a stapler; struck Bacon in the face, breaking his glasses, cutting his nose, lip and cheek, and cracking one of his teeth; ran from the office; and was subdued in the hallway after a struggle in which defendant was thrown to the floor and finally handcuffed. Defendant was returned to the security office, where his companions had remained during the episode. Sanders opened the black bag and took out the contents. Defendant told his companions: ‘Watch while he is going through my bag.’ The bag contained 12 credit cards in the name of Al Sirott, 13 credit cards in the name of Winston Marsh, a red pen, a temporary Minnesota driver's license, in red ink, in the name of Marsh, a number of other credit cards, and a number of other articles.

Defendant entered pleas of not guilty and not guilty by reason of insanity; later withdrew the plea of not guilty by reason of insanity; and was tried on the charges of which he was convicted.

The Sirott and Marsh items taken from the black bag were admitted in evidence, over objection by defendant. The remaining items in the black bag were not admitted.

The evidence established, in addition to the facts heretofore noted, Al Sirott owned Palm Springs Lincoln Mercury; did not employ defendant; did not authorize defendant to use his credit card; did not apply for a Minnesota driver's license; and had met Winston Marsh in a hotel in Minnesota.

After the prosecution's witnesses had testified, defendant, through his counsel, moved for a continuance to obtain the presence of defendant's two companions, whose whereabouts were unknown, and made an offer of proof they would testify defendant struck Bacon in self defense. The court denied the motion.

Before trial defendant moved to dismiss his attorney and to represent himself. His motion was denied upon the ground his waiver of counsel was not made knowingly, intelligently and understandingly; and his appointed counsel was able, vigorous and capable of giving defendant effective representation. During closing arguments defendant made an outburst claiming his counsel was railroading him. Thereafter defendant renewed his motion to remove his counsel. The court found he was receiving effective representation and denied the motion. The record supports denial of both motions.

Defendant's contentions on appeal are stated in two briefs; one by appellant counsel; and the other by defendant personally. The contentions are: (1) The trial court error in admitting some of the contents of the black bag; (2) defendant's statements to the security guards were inadmissible because he had not been given a Miranda warning; (3) defendant's statement to his companions to watch while one of the guards was going through his bag was an involuntary confession which should not have been admitted in evidence; (4) remarks by the district attorney in his closing argument constituted prejudicial misconduct; (5) denial of defendant's request for a continuance was an abuse of discretion; and (6) defendant was denied effective representation by counsel, and denial of his motions to remove his counsel and permit him to proceed without counsel was error.

Defendant's claim of error in admitting in evidence the Sirott and Marsh items taken from the black bag, is premised on the claim they constituted evidence of other offenses; were not relevant to the case; and in any event, the prejudicial character of the evidence outweighed its probative value. Inferentially, possession of the items would support the conclusion they were the products of thefts committed by defendant and of attempted forgeries by him. However, they were relevant to the issue of intent to defraud. Whether the evidence supports the foundational admissibility requirements prescribed by People v. Schader, 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Haston, 69 Cal.2d 233, 244, 70 Cal.Rptr. 419, 444 P.2d 91 and People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, we need not decide, because any claimed error in their admission was harmless beyond a reasonable doubt measured by the rule stated in Chapman v. State of California, 386 U.S. 18, 21–24, 87 S. Ct. 824, 826–828, 17 L.Ed.2d 705 and was not prejudicial measured by the rule stated in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243. Defendant did not testify or present any defense. The facts heretofore stated, without reference to the fact defendant had in his possession the items in the black bag, establish all of the elements of the offense. He forged the name of a credit card holder and used the card to obtain valuable merchandise from the store; he did not have permission to use the card; he presented a false driver's license to show he was the person to whom the credit card had been issued; and he attempted to flee when questioned about the incident. These facts were established by uncontroverted evidence. The case was not a close one. The rationale in People v. Antick, supra, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, on the issue of prejudice is not applicable to the circumstances at bench.

Although the court gave a limiting instruction respecting the use of the evidence admitted over defendant's objection when it instructed the jury generally, it did not give the limiting instruction at the time the objection was made and the items from the black bag were admitted in evidence. Defendant contends the failure to give the instruction at the time the items were admitted in evidence was error. In the light of the circumstances heretofore stated, we have concluded the claimed error in failing to give the limiting instruction promptly was harmless beyond a reasonable doubt and was not prejudicial.

Defendant's objection to admission of his statements in response to questions by the security guards, and the yellow driver's license bearing Sirott's name, is premised on the lack of a Miranda warning. The objection is without merit for the following reasons: (1) The security guards were employees of the store; they were not employed by an agency of government; and the products of an interrogation by them without a Miranda warning are not within the Miranda rule (People v. Wright, 249 Cal.App.2d 692, 694–695, 57 Cal.Rptr. 781; People v. Crabtree, 239 Cal.App.2d 789, 49 Cal.Rptr. 285); (2) defendant's statements respecting his employment were the products of questions respecting his identity which, under the circumstances of the case, were not designed to elicit incriminating statements and are admissible even though not preceded by a Miranda warning (People v. Cotter, 63 Cal.2d 386, 393, 46 Cal.Rptr. 622, 405 P.2d 862; People v. Hernandez, 263 Cal.App.2d 242, 69 Cal.Rptr. 448; People v. Walters, 252 Cal.App.2d 336, 60 Cal.Rptr. 374); and (3) the statement to defendant's companions supporting an inference the black bag belonged to him was voluntary, was not the product of an interrogation, and, as such, was admissible without proof of a Miranda warning (People v. Johnson, 20 Cal.App.3d 168, 97 Cal.Rptr. 332).

Defendant's objection to the statement respecting ownership of the black bag is also premised on the ground it constituted an involuntary confession elicited by coercion. It was not a confession but an admission of an incriminating fact. In any event, the basis for the objection is without factual support. Defendant claims the fact he and his companions were in a small room, the office of the security guards, which was crowded, caused him to make the statement to gain the release of his companions. Defendant made the statement after being returned to the room, from which he had fled after assaulting one of the guards. His companions had remained in the room when he fled. There is no evidence of abusive tactics by the guards. The contention his volunteered statement was involuntary, because produced by psychological coercion, is without merit.

Defendant's contention charging the prosecuting attorney with prejudicial misconduct is premised on the latter's reference in closing argument to the Marsh credit cards and an insinuation these cards were related to crimes outside the state. The trial court sustained defense counsel's objection to these statements and admonished the jury, ‘There is no evidence in this record as to crimes out of the state. The remarks are stricken and the jury is admonished to disregard them.’ The prosecuting attorney should not have made the statements. The admonition by the court was a proper rebuke. In effect the court instructed the jury the evidence to which the prosecuting attorney referred was not evidence defendant had committed any other crimes. In addition, in the light of this instruction and the circumstances heretofore considered in ruling upon defendant's contentions respecting error in admitting the Marsh and Sirott items taken from his bag, the objectionable conduct of the prosecuting attorney was harmless beyond a reasonable doubt and was not prejudicial.

Denial of defendant's request for a continuance of the trial in order that his companions might be located and produced as witnesses on the assault charge, was not an abuse of discretion. The assault charge was added to the information by an amendment filed on the day of trial. However, the record shows defendant and his counsel knew the charge was pending at least a month before the trial, and neither of them knew of the whereabouts of the companions. Defense counsel made an offer of proof that the two companions would testify defendant struck the guard in self-defense. The prosecuting attorney countered by directing the court's attention to the fact the assault occurred before defendant was chased and subjected to the rough treatment of which he complains. No charge was made against him respecting his resistance to arrest. Any claim of self-defense was immaterial to the assault charge. In addition, as noted, neither defendant nor his counsel knew the whereabouts of the companions. No abuse of discretion appears. (People v. Bethea, 18 Cal.App.3d 930, 937, 96 Cal.Rptr. 229; People v. Livingston, 4 Cal.App.3d 251, 255, 84 Cal.Rptr. 237; Witkin, Cal. Criminal Procedure (1963) Trial, § 281, p. 273.)

Defendant's contention he was denied effective representation by counsel is premised on the latter's alleged failure to locate his two companions and produce them as witnesses on the assault charge; and on the withdrawal of his plea of not guilty by reason of insanity, which he claims was his only defense.

The facts show no basis for a belief of any probability self-defense was a defense to the assault charge.

Defendant and his counsel agreed to withdrawal of the plea of not guilty by reason of insanity after a discussion between them. Before this, defendant had been examined by a psychiatrist and he, as well as his counsel, had the benefit of the psychiatric reports on file. Before accepting the change of plea, the court examined defendant respecting his knowledge of his rights in the premises and of the consequences of withdrawing the plea of not guilty by reason of insanity. In response defendant stated: ‘All I can say now, your Honor, is that it would hurt my case irreparably, you know, if I was to make a plea of guilty because of insanity . . . not guilty because of insanity.’

The record establishes defendant was not reticent in making his wishes known. If he had not wished to withdraw his plea it would not have been withdrawn (see People v. Vaughn, 9 Cal.3d 321, 328, 107 Cal.Rptr. 318, 508 P.2d 318; In re Beaty, 64 Cal.2d 760, 765, 51 Cal.Rptr. 521, 414 P.2d 817). It is obvious the withdrawal of the plea was a tactical determination. Before ruling on the request to do so, the court expressed the opinion, giving its reasons therefor, there was no doubt as to the present sanity of the defendant. In ruling upon the request the court stated: ‘The Court is satisfied that the defendant is making a free and voluntary choice with comprehension of the consequences, and the Court believes, therefore, that the withdrawal of the plea should be permitted. The plea is hereby withdrawn as to both informations.’

The record does not support the conclusion defendant was denied effective representation by counsel within the rule and standards prescribed by People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, and People v. Miller, 7 Cal.3d 562, 573–574, 102 Cal.Rptr. 841, 498 P.2d 1089.

A further contention respecting an alleged erroneous instruction has become moot in that it was premised on an error in the record which has been corrected.

Since the trial of the action the United States Supreme Court in Faretta v. State of California, 1975, 422 U.S. ——, 95 S.Ct. 2525, 45 L.Ed.2d 562, has ruled a defendant has a constitutional right to represent himself; where he moves to do so, before granting his motion ‘he should be made aware of the dangers and disadvantages of self-representation’ and of his right and the consequence of waiving his right to be represented by counsel, ‘so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open’' (ibid. p. ——, 95 S.Ct. p. 2541); and his motion should be granted where the record shows he knowingly and intelligently waives his right to be represented by counsel, knowingly and intelligently exercises his right to represent himself, is literate, competent and understanding, and is voluntarily exercising his informed free will (ibid. p. ——, 95 S.Ct. 2525).

We have concluded the case at bench is not within the scope of the ruling in the Faretta case because of significantly material factual differences between the two cases.

In Faretta, the defendant ‘[w]ell before the date of trial’ moved to represent himself; the motion was granted; and thereafter ‘but still prior to trial’ the judge sua sponte held a hearing to inquire into his ‘ability to conduct his own defense, and questioned him specifically about both the hearsay rule and the state law governing the challenge of potential jurors' (Faretta v. States of California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562). In the case at bench defendant did not move to represent himself until the day of trial and following the denial by the district attorney of a request to dispose of the case in the manner proposed by defendant through his attorney. Defendant stated he was not satisfied with his counsel and said ‘I don't think that I could get a fair trial with a public defender that works so closely with the D.A. He works right under his thumb, you know. I feel that if I am en route to prison, I can do it myself better, you know. I feel it would be wiser that I do this than let somebody else do it, you know.’ During the ensuing discussion between the court, defense counsel and defendant, the latter stated he had not ‘had time to look at any of the evidence being used in the trial’; he ‘hardly knew anything about the case’; he just recently received the transcripts, apparently referring to the transcripts of the preliminary hearings;¹ and he had been in jail ‘well over three months.’ It is obvious if defendant's motion to represent himself had been granted he would have moved for a continuance. The request of a defendant to exercise his right to represent himself must be asserted timely (see In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10; People v. Loving, 258 Cal.App.2d 84, 87, 65 Cal.Rptr. 425; People v. Gaither, 173 Cal.App.2d 662, 671, 343 P.2d 799; cf., People v. Thomas, 58 Cal.2d 121, 130, 23 Cal.Rptr. 161, 373 P.2d 97) and may not be used as a tool for dilatory purposes (People v. Douglas, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 392 P.2d 964). The decision of the court in Faretta, by stressing the timeliness of the request therein considered, acknowledged the propriety of the foregoing limitation upon the exercise of the defendant's right to represent himself. The circumstances at bench support the inference defendant's motion was used as a tool for dilatory purposes.

In Faretta, the inquiry by the trial judge at the hearing resulting in reconsideration and denial of the defendant's request to represent himself primarily was concerned with his knowledge of the rules respecting hearsay evidence and governing the challenge of potential jurors. The inquiry and its result were summarized in the decision as follows: ‘After consideration of Faretta's answers, and observation of his demeanor, the judge ruled that Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel . . ..’ (Faretta v. State of California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562).

In the case at bench, the court interrogated defendant respecting his knowledge of pertinent rules of law including the punishment prescribed for the offenses charged and the burden of proving alleged prior convictions, to which, in summary, defendant replied: ‘I am not learned in law’; ascertained he was 23 years of age, and had finished the 11th grade in school; knew, from the record, he was charged with three prior felony offenses for which he had been imprisoned; and was told by the defendant he knew ‘very little’ about his case.

Defendant's grounds for requesting discharge of his appointed counsel were unsupported, vague generalities which the court found to be insufficient cause for discharge. In addition, the court found: ‘[D]efendant, based upon his age experience, background, knowledge of the law, and awareness of the consequences of the offenses herein, has not made a knowing, intelligent, and understanding waiver of his right to counsel.’ The defendant asked the court if it was ‘saying that I am not knowledgeable enough about law.’ The court refused to limit the grounds of its ruling to that intimated in defendant's question by stating: ‘Based upon your age, background and experience, considering all of the circumstances, the Court finds that you have not made a knowing, intelligent and understanding waiver of your right to counsel.’ Thus the ruling was not grounded upon the limited basis for the ruling by the trial court in Faretta, i. e., a lack of knowledge of the law. The interrogation respecting defendant's knowledge of pertinent rules of law not only showed a lack of knowledge thereof,² but also, when considered with the total discussion, showed a lack of comprehension, of the ability to comprehend and of common sense. The latter factors, and others hereinafter considered, were included in the court's reference to ‘all of the circumstances' upon which the finding was made.

In Faretta, the order denying self-representation was based on the dual grounds Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel, premised upon his answers to questioning soliciting his knowledge of the law, and upon the court's observation of his demeanor, which heretofore has been noted, and on the ground he ‘had no constitutional right to conduct his own defense’ (Faretta v. State of California, supra, 422 U.S. 806, ——, 95 S.Ct. 2525, 2529, 45 L.Ed.2d 562). In the case at bench the court did not premise its order denying self-representation on the ground defendant did not have a constitutional right to conduct his own defense.

At this juncture it is pertinent to observe that the exercise of the right of self-representation is subject to regulation and control by the trial court in the discharge of its duty to safeguard and promote the orderly and expeditious discharge of its business; may be denied in the discharge of this duty; may not be used to subvert the orderly and efficient administration of justice (People v. Carter, supra, 66 Cal.2d 666, 670, 58 Cal.Rptr. 614, 427 P.2d 214; People v. Douglas, supra, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Thomas, supra, 58 Cal.2d 121, 131, 23 Cal.Rptr. 161, 373 P.2d 97; People v. Mattson, 51 Cal.2d 777, 792–793, 336 P.2d 937; In re Connor, supra, 16 Cal.2d 701, 709, 108 P.2d 10; People v. Loving, supra, 258 Cal.App.2d 84, 87, 65 Cal.Rptr. 425; People v. Powers, 256 Cal.App.2d 904, 914, 64 Cal.Rptr. 450; People v. Smith, 223 Cal.App.2d 394, 404, 36 Cal.Rptr. 119); and should be denied where granting such would jeopardize a fair trial of the issues (People v. Floyd, 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64).

Shortly after defense counsel had commenced his closing argument he was interrupted by defendant; before any statement could be made by the latter, requested a recess; then requested the court remain in session without the presence of the jury; and advised the court defendant did not wish him to make any further argument ‘not because he [defendant] wants to submit it to the jury on that, but he feels, and he has indicated to me this feeling, that he is being railroaded by any activity that I may present to the jury.’ In the discussion which followed, defendant said he did not want appointed counsel to represent him; that the latter was working with the district attorney; and that he did not need ‘this man’ to railroad him to prison. The court patiently listened to defendant's accusations against counsel, which were groundless; found counsel had represented defendant effectively, specifying the particulars in support of this conclusion; and made the following statement: ‘I am also telling you one other thing: Please don't interrupt counsel when he addresses the jury and I will tell you why. Because you only prejudice yourself.’ Defendant moved to have counsel dismissed. The court denied the motion, and again sought defendant's cooperation, saying: ‘Please do not interrupt counsel as he argues his case before the jury. It only prejudices you.’ The trial was resumed; defense counsel proceeded with his argument; and shortly thereafter defendant again interrupted by repeating his counsel's name. When interrupted, counsel was stressing the fact there was no evidence of any animosity between defendant and the officer allegedly assaulted by means of force likely to produce great bodily injury. The interruption was unprovoked and unwarranted. Defendant finally quieted down; the argument was resumed, but shortly thereafter defendant made another unprovoked and unwarranted outburst. The court excused the jury; in an ensuing discussion advised defendant if he did not remain quiet it would be necessary to order him out of the courtroom; and asked for defendant's assurance he would remain quiet. Defendant replied: ‘I can't do that.’ Thereupon the court ordered him removed form the courtroom; placed in a holding cell; and provision made for him to hear the proceedings by microphone transmission.

This actual disruption of the proceedings demonstrated what would have happened during trial if defendant had been permitted to represent himself and became displeased with anything the prosecuting attorney or the court may have said or done. His trial would have been a farce. Granting defendant's motion to represent himself would have subverted the orderly administration of justice and jeopardized a fair trial of the issues (People v. Floyd, supra, 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Powers, supra, 256 Cal.App.2d 904, 914–915, 64 Cal.Rptr. 450).

The proceedings on appeal also demonstrate defendant either had no understanding of the consequences of his action or intended only to delay and disrupt. When his appeal came before this court he was advised of his right to be represented by counsel, and in the event he was indigent the court would appoint counsel to represent him. Two weeks later defendant filed his opening brief in ‘Propria Persona.’ Among other contentions therein was his claim the court erred in admitting credit cards belonging to an ‘individual in Minnesota that was found in the . . . black bag’ although ‘defense counsel strenuously objected to the admission of same.’ This statement belies defendant's contention at the trial his appointed counsel was ‘working with the D.A.’ and ‘at any time the D.A. mentions anything about the case, he [defense counsel] agrees with it wholeheartedly.’ After filing his brief defendant requested this court to appoint counsel to represent him. Counsel was appointed and filed a brief raising six legal issues. Thereafter defendant wrote to his appellate counsel stating ‘I am in complete opposition to the opening brief you filed. . . .’; and requested counsel ‘to dismiss yourself’ and ‘withdraw the opening brief you filed in my behalf because without doubt you are not representing my best interests.’ Thereupon counsel requested permission to withdraw from the case, and to strike the brief he had filed. We denied the motion and advised defendant accordingly by letter, which also advised him if he preferred to represent himself he should advise the court of his wishes in writing, the appointment of counsel then would be vacated, and if he requested, the brief filed on his behalf by counsel would be stricken from the record. Defendant made no response to the letter. His lack of good faith is evident.

Defendant, by his brief on appeal, personally prepared and filed by him, establishes any contention the court erred in denying his motion to represent himself is groundless. His complaint defense counsel was ineffective because he did not seek out and subpoena his two companions whose testimony, he asserts, would support a contention his assault was in self-defense, is frivolous. He did not know the whereabouts of these prospective witnesses; had been in jail for three months but apparently made no attempt to contact them by letter, or otherwise, and, insofar as the record shows, did you request his attorney to do so nor furnish him with information which might have led to their discovery. If defendant had been representing himself the result would not have been different, except he would not have had counsel to blame for his inadequacies. The motion for a continuance, which he instituted, purportedly in order to obtain the presence of these witnesses, was another dilatory tactic. Furthermore, when representing himself through his brief on appeal, he blatantly states the only defense he had to the charges against him, or as stated in his own words, ‘the only defense appellant possessed’, was his plea of not guilty by reason of insanity. Thus it must be concluded, when representing himself defendant proves his claim of self-defense was a sham, as was his claim he wanted, in good faith, to represent himself.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Defendant's convictions followed the filing of two separate informations, consolidated for trial, each one charging one of the offenses of which he was convicted, and had been preceded by a separate preliminary hearing.

2.  Defendant's interrogation showed a lack of knowledge of the punishment for the offenses of which he was charged; the effect of his prior convictions; and the rules respecting the proof of those convictions. If the court had concluded defendant intelligently and understandingly waived his right to assistance of counsel it is doubtful the order would have been sustained on appeal under the requirements stated in People v. Carter, 66 Cal.2d 666, 672, 58 Cal.Rptr. 614, 427 P.2d 214; In re Johnson, 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 398 P.2d 420; and People v. Williams, 252 Cal.App.2d 147, 156, 59 Cal.Rptr. 905 (cf., People v. Montigo, 248 Cal.App.2d 32, 56 Cal.Rptr. 33).

COUGHLIN, Associate Justice.* FN* Retired Associate Justice of the Fourth District sitting under assignment by the Chairman of the Judicial Council.

DRAPER, P. J., and SCOTT, J., concur.